Common Law Spouse Criteria In British Columbia

Common law spouse

What Qualifies as a Common Law Spouse in BC

The legal issue as to whether or not a couple, whether they be heterosexual or homosexual, when they purport to be common-law spouses of each other has increasingly become more common and at the same time more complicated to determine. The discussion of this blog is to examine the criteria as to what the law in BC says about who qualifies as a common law spouse.

The nature of  human relationships of all  kinds has exposed itself  in the last  two decades as more and more  varied,  diverse and sometimes even bizarre, when compared to society’s idea of the  “normal marriage”.

For further articles and blogs on the  topic of common-law marriages , please also visit:

November 19,2013 -Entitled Common Law Marriage or Mere Housemates?

January 26,2014

August 2,2013

February 1,2013

Boyar Estate v Boyar 2014 BCSC 313 is the latest British COlumbia case to rule on whether a couple were common law spouse or not.

 

The Court concluded that they were not common law spouse as inter alia,  the evidence showed that the wife and the deceased had live together only intermittently, that they own no property together, and that they consistently represented themselves to others as being single.  An independent witness for example testified that they did not live together,  and that they talked on the phone to with each other most days.

The Law

Counsel for Ms. Chandler and for Ms. Boyar provided the Court with a number of authorities on this issue, including Janus v. Lachocki, 2001 BCSC 1702; Souraya v. Kinch, 2012 BCSC 1252; Kirkwood v. MacMillan, 2008 BCSC 91; Mazur v. Berg, 2009 BCSC 1770; Tenorio v. Redman Estate, 2011 BCSC 1403; Takacs and Boucher v. Gallo, 1996 CanLII 6429 (BCCA); L.E. v. D.J., 2011 BCSC 671; Austin v. Goerz, 2007 BCCA 586;  and Yakiwchuk v. Oaks, 2003 SKQB 124. I have read these decisions and considered the application of the principles enunciated in them to the facts of this case.

[220]     At para. 46 of Justice Huddart’s dissenting Reasons in Takacs v. Gallo, she set out and expressed approval for the detailed seven-part analysis derived from Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.).  Justice Huddart would have upheld the decision of the trial judge that Mr. Takacs and Ms. Boucher were “spouses” for the purposes of the Family Compensation Act, R.S.B.C. 1979, c.  20.  The definition of spouse in that Act defined spouse as:

…a person who lived with the deceased as the husband or wife of the deceased for a period of not less than 2 years ending no earlier than one year before the death of the deceased.

[221]     Justice Newbury, with the concurrence of Chief Justice McEachern, found that the trial judge had erred in concluding that the couple were “spouses”.  Justice Newbury affirmed the law in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 265.  She held that the focus should first be on the intentions of the parties to live as husband and wife or in a marriage-like relationship.  Both subjective and objective considerations are relevant.  Financial dependence or inter-dependence is a factor to be considered.  No one factor is conclusive.

[222]     Justice Newbury reviewed the history of the relationship between Mr. Takacs and Ms. Boucher.  She found that the judge had erred in concluding that the two had lived together for two years, because except for one academic year, they had lived apart even when in the same city.  They spent their summer vacations (both were students) in different towns, and did not travel together.  Justice Newbury held that this evidence was “…consistent with the type of relationship many couples have while attending school and considering marriage eventually” (para. 57).  She concluded that although the parties were in a relationship and had plans to marry in future, they had not yet “…formed the subjective intention or manifested the objective indicators that could support a finding that they had begun to live as husband and wife…”

[223]     In J.J.G. v. K.M.A., 2009 BCSC 1056, quoted with approval by Justice Russell in L.E. v. D.J., cited earlier, Justice Dardi stated:

[37] …the court must examine the relationship as a whole and consider all the various objective criteria referred to in the authorities.  The presence or absence of one particular factor will not be determinative.  The court must recognize that each relationship is unique and, in applying a flexible approach within the context of a particular relationship, make a determination as to whether the parties intended to and were living in a marriage-like relationship.

[224]     Turning now to the facts of this case, I conclude that at the time of Mr. Boyar’s death, he and Ms. Chandler were not “cohabiting”.  Mr. Boyar and Ms. Chandler had lived together in her home for a few weeks before his accident in July 2005.  After his discharge from hospital late in August 2005, Mr. Boyar convalesced at Ms. Chandler’s home.  He moved out of her home around the end of January 2006.  For the rest of that year and most of the next, he lived alone in rented accommodation, but also spent some time in Prince George visiting Mr. Foulston.

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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